Is Trump's order on sanctuaries enforceable?

Friday

Jan 27, 2017 at 4:50 PMJan 27, 2017 at 5:37 PM

Leaders in many sanctuary cities are remaining defiant in the face of President Donald Trump's plan to strip them of federal funding, while legal scholars and local officials analyze which funds could actually be at risk.

Gerry Tuoti Wicked Local Newsbank Editor

Leaders in many sanctuary cities are remaining defiant in the face of President Donald Trump’s plan to strip them of federal funding, while legal scholars and local officials analyze which funds could actually be at risk.

“In all, there are more than 300 sanctuary cities, counties and states in the United States that limit local law enforcement’s involvement in federal immigration enforcement. We will not have a working economy if federal funding is pulled from them all,” Somerville Mayor Joseph Curtatone said.

Trump on Wednesday signed an executive order to remove federal funding from sanctuary cities, communities that have policies against using local resources to enforce federal immigration law. The term “sanctuary city” is an informal one and is broadly defined. Individual sanctuary cities may have varying levels of non-cooperation with federal immigration authorities.

Cities and towns receive millions of dollars in federal funding for a variety of programs and services, including highway safety, community development, substance abuse treatment, veterans and senior services, child nutrition and education.

Some legal scholars have said anti-commandeering language in the Constitution and case law prevents the federal government from using funding cuts to coerce local jurisdictions.

“The 10th Amendment would prohibit Homeland Security from conscripting state or local officers to do their bidding,” said University of Denver law professor Christopher Lasch, a former teaching fellow at the Yale Law School Worker and Immigrant Rights Advocacy Clinic.

The federal funding Trump’s order could put on the chopping block is derived in part from taxes paid by residents across the country, including those living in sanctuary cities.

Posing additional challenges to the execution of Trump’s plan, authority over spending largely lies with Congress, and established case law dictates that restrictions on federal funding must be directly related to the use of the funds. That may potentially limit funding cuts to areas directly related to immigration and law enforcement.

The impact in Massachusetts

Sanctuary cities in Massachusetts include Somerville, Cambridge, Boston and Holyoke. Leaders in those communities say their police departments should not be used to enforce federal immigration officers’ policies. Furthermore, they argue, sanctuary policies encourage undocumented immigrants who are victims of crimes to come forward to police without fear of deportation.

Sanctuary city policies typically state that municipal officials will not honor detainment requests from Immigration and Customs Enforcement unless federal immigration agents have a criminal warrant, or there is a legitimate law enforcement reason for detainment besides a person’s immigration status.

Some sections of Trump’s order make explicit references to a federal statute that bars governments from prohibiting their employees from contacting federal authorities with information about a person’s immigration status. Nationally, very few sanctuary cities, however, actually have policies violating that statute, Lasch said.

“The executive order, while broadly aggrandized by the administration as fulfilling Trump’s campaign promises, is not actually going to significantly affect a vast number of so-called sanctuary jurisdictions,” Lasch said. “The federal government doesn’t really need state or local governments to tell them a person’s immigration or citizenship status, because that’s information the federal government should have already.”

Leaders in sanctuary cities in Massachusetts say the law is on their side.

National League of Cities President Matt Zone called the wording of Trump’s order “ambiguous.”

“The order signed by President Trump does not clearly define sanctuary jurisdictions, so it is difficult to foresee how and which cities will be impacted by the order,” he said in an email.

He also said that sanctuary city policies don’t stop federal immigration officers from doing their jobs.

“There appears to be a false assumption that ‘sanctuary cities’ prevent U.S. Immigration and Customs Enforcement (ICE) agents from enforcing immigration laws,” Zone said. “This could not be further from the truth. In practice, federal programs intended to partner with cities and towns on immigration enforcement are broken.”

“While we do not yet know what impact President Trump’s Executive Order on Immigration will have, as a Sanctuary City, Cambridge will continue to support and promote the safety, health and well-being of all our residents, regardless of immigration status,” they said in the statement. “We encourage every resident – regardless of status – to seek and obtain assistance from the many resources available to the Cambridge Community.”

Cambridge receives approximately $15.5 million in federal funds, including $5.9 million for schools, $2.6 million for community development programs and $219,000 for police, according to a city spokesman.

Somerville officials estimate they receive $5-6 million in direct federal aid annually, and roughly $12 million when federal funding allocated through indirect channels, such as the state government, is taken into account.

Boston received approximately $500 million in federal funding this year, according to Mayor Martin Walsh’s office. That includes $285 million for housing, $114 million for public schools and $20 million for public safety.

Newton, which is considering adopting a sanctuary city policy, received $12 million in fiscal 2016, according to a draft annual audit.

Arlington, which is also considering whether to adopt a sanctuary policy, got $6.3 in federal funds in fiscal 2016, according to the town manager’s office.

“The president’s action only serves to strengthen my resolve to stand with other communities across Massachusetts and the nation in support of all of our residents — particularly immigrants who are facing a climate of fear — and to affirm the enlightened practices that our police department already follows,” Arlington Selectman Joseph Curro said in an email.

The executive order

White House spokesman Sean Spicer told reporters in a Jan. 25 media briefing that administration officials were working to identify how to block federal grant funding.

The executive order states that it is now White House policy to ensure sanctuary cities “do not receive Federal funds, except as mandated by law.”

Trump’s order directs the White House Office of Management and Budget to compile lists of all federal grant funding going to sanctuary cities, and gives the secretary of homeland security the authority to determine whether a city, state or county is a “sanctuary jurisdiction.”

The order also explicitly directs the U.S. attorney general and the secretary of homeland security to make sanctuary cities ineligible for grants their offices administer, unless the grants are essential for law enforcement purposes.

“Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic,” Trump’s executive order states.

-- Katie Bowler of the Somerville Journal, Bram Berkowitz of the Arlington Advocate and Jonathan Dame of the Newton Tab contributed to this report.